Shri Mohan Lal Rathi vs Central Bureau Of Investigation
2018 Latest Caselaw 494 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 25.04.2018
 
Judgement Delivered on 14.05.2018
 

 
Court No. - 1
 

 
Case :- APPLICATION U/S 482 No. - 7585 of 2018
 

 
Applicant :- Shri Mohan Lal Rathi
 
Opposite Party :- Central Bureau Of Investigation
 
Counsel for Applicant :- Dileep Kumar
 
Counsel for Opposite Party :- Gyan Prakash
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Dileep Kumar & Sri Tanveer Ahmed Mir assisted by Sri Dhruv Gupta, learned counsel for the applicant and Sri Gyan Prakash, learned counsel for the C.B.I.

2. The inherent power of this court has been invoked by the applicant seeking quashing and setting aside of the impugned order dated 20/02/2018 passed by the learned special Judge, Anti-Corruption, CBI, Ghaziabad whereby the application No. 511 kha read with 503 Kha praying for tendering pardon and for being declared an approver have been rejected in criminal case No. 13 of 2017 (especially case No. 08/2017), CBI vs Yadav Singh under section 109 read with 120-B IPC along with Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988.

3. In application No. 503 kha it was prayed that the CBI had filed charge sheet against him in the aforesaid case being RC No. DST/2015/A/003 under sections 109 read with 120 - B IPC and Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 showing him as an accused no. 11, he being Chartered Accountant of accused No. 1 namely, Yadav Singh and his family members. He had made certain entries in the books whereby he converted unaccounted money of the accused into accounted one and facilitated accused in purchasing both movable and immovable assets. The CBI had called him at Delhi to join investigation and with complete sincerity and honesty he participated in the same and made about 100 visits for answering their queries and made full disclosures. Therefore it was prayed that he should be declared an approver in the matter after being granted pardon and further his statement under section 164 Cr. P.C. should be directed to be recorded. The other application 115 kha was moved by him in which it was stated that the above-mentioned case was listed for appearance of the accused persons which was registered by CBI under directions of Lucknow Bench of this court in miscellaneous Bench No. 12396 of 2014 passed on 16/07/2015, vide which CBI was directed to conduct an investigation into the allegations of corruption and amassing of unaccounted money by co-accused Yadav Singh and others, which culminated in filing of charge- sheet on 15/03/2016, wherein the applicant was not made an accused. The court took cognizance of the offences and summoned the accused to face trial, however CBI mentioned that supplementary charge sheet was pending which would be filed as and when the investigation would be completed in this regard in respect of the pending aspect of the matter. The applicant joined the investigation since the year 2015 and during investigation by CBI, his statement was recorded under sections 164 Cr. P.C. on 29/11/2016 before the court of Shri Pankaj Sharma, learned MM Patiala House District courts, New Delhi. The intention of the investigating authorities was to make the applicant approver and it had no objection to grant him pardon. The investigating authority filed supplementary charge sheet on 26/09/2017 before the court wherein he was made an accused. The court took cognizance qua the applicant on the supplementary charge sheet and issued summons on 13/10/2017: The applicant thereafter filed an application under sections 306 Cr. P.C. before the court seeking grant of pardon and for becoming an approver in the matter which is pending adjudication, the contents whereof shall be treated as part and parcel of the present application to avoid repetition and for the sake of brevity. The CBI filed its objection in reply to the said application on 14/11/2017 wherein it contended that it had no objection. Meanwhile an application under Section 482 Cr. P.C. bearing No. 39204/2017 was preferred by the applicant before High Court on 27/11/2017, which was dismissed as withdrawn, in which prayer was made not to take coercive action against the applicant till disposal of his application under sections 306 Cr. P.C. The said Section was not applicable in his case as it fell under section 307 Cr.P.C., hence the applicant had to move the present application with a prayer to treat the previous application filed by him under sections 306 Cr. P.C. to be an application under sections 307 Cr. P.C. It is further mentioned that he placed reliance upon six judgements of the Hon'ble Supreme Court, in which it was held that in case of filing of charge- sheet before the special designated Judge, there is no stage of committal, as the Special Judge is empowered to take cognizance of offences under sections 4 of the P.C. Act, as such Section 307 Cr. P.C. would be applicable and not sections 306, which is applicable only before magisterial court prior to the committal stage. Further it is mentioned that Section 5 of the PC Act empowers the Special Judge to grant pardon and the language used therein is that Section 307 Cr. P.C. would be applicable. It was by inadvertence and purely on legal advice that earlier an application under 306 Cr. P.C. was moved erroneously which could not be brought to the notice of the High Court.

4. The learned court below has mentioned in the impugned order the relevant facts as follows. It appeared during investigation that during 1/4/2004 to 4/8/2015 Yadav Singh and his family had acquired properties worth Rs. 23,15,41,514/- which was more than his income worth Rs. 4,51,64,232/- which was 512.66% more. Yadav Singh had more properties than his income, and he invested his ill gotten income in making purchases of properties in his name & in the name of his son, daughters and wife. The applicant-accused Mohan Lal Rathi, a Chartered Accountant converted his unaccounted money into accounted money by making various entries in documents and by accumulating huge money in this fashion, a large number of movable and immovable properties were purchased by Yadav Singh in the name of his family members. Therefore in this entire illegal act the present accused remained involved in conspiracy with co-accused. On the basis of the facts which emerged during investigation, the investigating officer filed charge sheet on 26/09/2017 against Yadav Singh, the then Chief Engineer Grade - 2 Noida, his wife Smt. Kusum Lata, his son Sunny Yadav, his daughters Garima Bhushan and Karuna Singh, his daughter-in-law Shrestha Singh, M/s. Kusum Garments Private Limited through its representative/Director, M/s. K.L. Ultra Tech Private Limited through its representative/Director, M/s. Hi Chki Creations Private Limited through its representative/Director, PGP Charitable Trust through trustee and Mohan Lal Rati, the Chartered Accountant, under sections 120 B, 109 IPC and Section 13 (2) read with Section 13 (1) (e) of P.C. Act, 1988. It is further mentioned in the impugned order that in the light of the principles laid down in Criminal Appeal No. 300 - 303/2017, State of Karnataka vs Selvi J Jayalalitha vide order dated 14/02/2017, cognizance had been taken under the afore-mentioned sections in the charge- sheet against all the accused including the applicant and summons were issued on 13/10/2017 for ensuring their presence before court on 14/11/2017. The next date i.e. on 14/10/2017 the applicant did not appear rather his learned advocates namely, Anil Kumar Tyagi and Dhruv Tamta appeared before court and assured the court that he would appear on the next date i.e. on 12/12 /2017 but even on that date he did not appear rather another counsel Shri Tanvir Ahmad appeared on his behalf, then NBW was issued by the officer in-charge of the court. Even on next date fixed i.e. on 11/01/2018, the applicant did not appear nor did his counsel appear hence the matter was again adjourned for 20/02/2018. Citing above history, the learned lower court has recorded that in the case at hand, according to the argument made by the prosecution, there were 448 witnesses to prove the charge against the accused which in its opinion was sufficient evidence both quantitatively and qualitatively. Due to non appearance of the accused applicant, the proceedings of the case were not progressing; his conduct had remained negligent. Even if after tendering pardon to him he is made an approver, his evidence could not be a substitute for evidence of an eligible legal witness. If the applicant is ready to betray his co-accused, such a witness could easily dupe the court as well and could easily thrust his guilt upon others in order to prove himself innocent. Further it is mentioned that it is a matter of common prudence that in case there is sufficient evidence to prove the prosecution's case, no accused normally ought to be made an approver, otherwise every accused, to avoid himself being convicted would try to be an approver, which would result in defeating the ends of justice. It is held that there was no necessity of recording statement of the accused applicant under sections 164 Cr.P.C. at this stage and the rulings relied upon by him were not relevant in the present case and accordingly dismissed his application 503 Kha.

5. The contention of the learned counsel for the applicant is that the impugned orders have been erroneously passed. The credentials of the applicant are aboveboard as he has been instrumental in cooperating with the respondent to enable it to file charge- sheet. He is a registered Chartered Accountant practising since 1993 under the name and style "DSM & Associates" and has unblemished career having no criminal history. He has been involved in work of auditing and has been a tax consultant and financial advisor to reputed undertakings both governmental and non-governmental. During the investigation, the respondent persuaded the applicant to turn approver and promised to make him prosecution witness against the main accused as the allegation of the prosecution was that he allegedly was the person who filed income tax returns for Yadav Singh and his family members for a number of years being their Chartered Accountant. Although he was not involved at any stage in any sort of culpability of the co-accused and had absolutely nothing to do with the alleged laundering of money, yet he always cooperated with the investigating authorities and explained various financial transactions by providing documents to the respondent failing which filing of charge-sheet would have been difficult. The investigating authority had produced him on 29/11/2016 before the Delhi court for recording his statement under sections 164 Cr. P.C. to make him an approver against Yadav Singh and others and accordingly he made full, complete and comprehensive disclosures of all the facts to the satisfaction of investigating authority in his statement under sections 164 Cr.P.C. hoping that he would be tendered pardon and would remain approver under sections 307 Cr. P.C. Later on, the respondent filed charge sheet against him also along with other co-accused under sections 120 B, 109 I.P.C. and Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988. On the said charge sheet, cognizance has been taken by court vide order dated 13/10/2017 and summons were issued against the applicant and co-accused. Thereafter he moved an application 503 kha under sections 306 Cr.P.C. before trial court praying for tendering pardon in the present case, where-on the respondent had no objection. The trial court pressed for presence of the applicant, whereon it was assured that applicant would appear on the next date i.e. on 12/12/2017. In the meantime applicant filed proceedings under sections 482 Cr. P.C. bearing No. 39204 of 2017 praying that no coercive measures be taken against the applicant till disposal of the application under sections 306 Cr.P.C. however the said Section was not applicable as section 307 Cr.P.C. was applicable. The aforesaid fact could not be brought to the notice of the court. The said application under 482 Cr. P.C. was dismissed as withdrawn on 27/11/2017. Thereafter the matter was listed before the learned trial court on 12/2/2017 and then, too an application was filed before the special Judge bearing No. 510 kha seeking exemption of the accused applicant on medical grounds as he had suffered an injury on 5/12/2017 and another application bearing No. 511 Ka seeking to treat the previous pending application filed under sections 306 Cr. P.C. bearing No. 503 kha as an application under sections 307 Cr. P.C. and to grant relief therein. Vide order dated 12/12/2017 the Incharge learned special Judge dismissed the application 510 kha and issued non-bailable warrant against the applicants and adjourned the other application 511 Ka for the next date of hearing i.e. 4/11/01/2018. Being aggrieved, the applicant preferred proceedings under sections 482 Cr. P.C. bearing No. 42914 of 2017 seeking setting aside of order dated 12/12/2017 with the direction to the trial court to decide first on the next date, without taking any coercive action against the applicant, the application under Sectiion 307 Cr.P.C. but the same was dismissed vide order dated 22/12/2017 by the High Court. Against the said order dated 22/12/2017, the applicant filed petition under Article 136 before the Hon'ble Supreme Court bearing SLP (Cri.) No. 808 of 2018. Meanwhile, the matter was listed before the trial court on 11/01/2018, on which date, the applicant again would not appear on account of his medical condition and also moved an application seeking exemption from personal appearance. It was further submitted on his behalf by the counsel that he had filed SLP before the Hon'ble Apex court against order dated 22/12/2017, yet the trial court issued NBW against the applicant and adjourned the matter for 20/02/2018. The SLP (Cri. ) No. 808/2018 came up for hearing, wherein it was submitted on behalf of the applicant that he would appear before the trial court on the date fixed i.e. on 20/02/2018 and that his applications under sections 306/307 be directed to be decided on the same day. The Hon'ble Supreme Court vide order dated 10/02/2018 directed accordingly. In pursuance of the said order, the matter was taken up before the trial court on 20/02/2018 and the applicant appeared in person with his counsel, where he first surrendered before the trial court and thereafter the arguments were heard, but the trial court dismissed the said application erroneously vide order dated 20/02/2018.

6. This Court has to analyse the impugned order as to whether the impugned order has been erroneously passed without taking into consideration the ingredients of Section 307 Cr.P.C. which lays down the provision of tendering pardon to an accused person who is supposed to have been directly or indirectly concerned in, or privy to any such offence on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor in the commission of the said offence.

7. For the sake of convenience, relevant provisions of Sections 306 and 307 Cr.P.C. are quoted herein below:-

"Tender of pardon to accomplice.

306. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true dis- closure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to-

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 );

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub- section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub- section (1)-

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has, accepted a tender of pardon made under sub- section (1) and has been examined under sub- section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,-

(a) commit it for trial-

(i) to the Court of Session if the, offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 ), if the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

Power to direct tender of pardon.

307. At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."

8. These provisions have been interpreted by the Hon'ble Apex Court in State through C.B.I., Chennai V. Arul Kumar (2016)11 SCC 733 which has been relied upon by the learned counsel for the applicant.

"15. On a plain reading of Section 306 in conjunction with Section 307 of the Code, it becomes manifest that Magistrate is duly empowered to grant tender of pardon even in respect of the cases which are triable by the Session Court or by the Special Judge. This legal position is eloquently accepted in P.C. Mishra's case. That was also a case under P.C. Act in which P.C. Mishra (Appellant in the said appeal) and his Reader Ravi Bhatt were made accused persons. During investigation, CBI noticed that accused Ravi Bhatt was not a leading accused in the case and it was considered necessary to take him as an approver to prove the various missing links in the chain of circumstantial evidence, which were otherwise not available to the investigating agency. In this backdrop, the CB! filed an application Under Section 306 of the Code before the Special Judge, CBI, Delhi for grant of pardon to Ravi Bhatt. The Special Judge marked that application to the Chief Metropolitan Magistrate, who, in turn, referred the same to the Metropolitan Magistrate. The Metropolitan Magistrate examined the application of the CBI and passed the order, in exercise of powers conferred Under Section 306 of the Code, holding that it was a fit case where pardon should be granted to Ravi Bhatt to enable the prosecution to unveil all circumstances of the case and to unearth the truth. Other accused, namely, P.C. Mishra challenged the said order exactly on the grounds which are taken before us, i.e., the Magistrate had no power to grant the pardon as the case was triable by the Special Judge. This Court repelled the contention by reading such a power in the hands of Metropolitan Magistrate as well, before the committal of the case and found that power was rightly exercised as order of committal has not been passed when the order of grant of pardon was passed by the Magistrate. Following discussion from the said judgment is worth quoting:

11. Power to grant pardon enjoined Under Section 306 Code of Criminal Procedure. is a substantial power and the reasons for tendering pardon must be recorded. It is for the prosecution to ask that a particular accused, out of several, may be granted pardon, if it thinks that it is necessary in the interest of successful prosecution of other offenders or else the conviction of those offenders would not be easy. This Court in State of U.P. v. Kailash Nath Agarwal [State of U.P. v. Kailash Nath Agarwal MANU/SC/0182/1973 : (1973) 1 SCC 751 : 1973 SCC (Cri) 698] recognised the power of the District Magistrate to grant pardon at the investigation stage. This Court in Kanta Prashad v. Delhi Admn. [Kanta Prashad v. Delhi Admn. MANU/SC/0043/1958 : AIR 1958 SC 350 : 1958 Cri.LJ 698] had the occasion to examine the scope of Sections and of the old Code (Code of Criminal Procedure, 1898) vis-a-vis the powers of a Special Court constituted under the Criminal Law (Amendment) Act, 1952. This Court held that, reading the proviso to Section 337 and provisions of Section 338 together, the District Magistrate is empowered to tender a pardon even after a commitment, if the Court so directs. It was also held that Under Section of the Criminal Law (Amendment) Act, 1952, the Special Judge has also been granted power to tender pardon. The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon Under Section 337 of the Code. It was held if at the time when the District Magistrate tenders the pardon, the case was not before the Special Judge, then there is no illegality committed by the District Magistrate.

12. The scope of abovementioned provisions again came up for consideration before this Court in Kailash Nath Agarwal [State of U.P. v. Kailash Nath Agarwal MANU/SC/0182/1973 : (1973) 1 SCC 751 : 1973 SCC (Cri) 698], wherein this Court after referring to its earlier judgment in Kanta Prashad [Kanta Prashad v. Delhi Admn. MANU/SC/0043/1958 : AIR 1958 SC 350 : 1958 Cri.LJ 698] held as follows: (Kailash Nath Agarwal case [State of U.P. v. Kailash Nath Agarwal MANU/SC/0182/1973 : (1973) 1 SCC 751 : 1973 SCC (Cri) 698], SCC p. 757, para 13)

It will be noted from this decision that emphasis is laid on the fact that the proviso to Section 337 contemplates concurrent jurisdiction in the District Magistrate and in the Magistrate making an inquiry or holding the trial to tender pardon. It is also emphasized that the conferment of the power to grant pardon on the Special Judge does not deprive the District Magistrate of his power to grant pardon Under Section 337.

13. In Bangaru Laxman [Bangaru Laxman v. State MANU/SC/1409/2011 : (2012) 1 SCC 500 : (2012) 1 SCC (Cri) 487 : (2012) 2 SCC (L&S) 422] this Court has stated that the power of Special Judge to grant pardon is an unfettered power and held that, while trying the offences, the Special Judge has dual power of a Special Judge as well as that of a Magistrate. This Court, while interpreting Section 5, then went on to say as follows: (SCC pp. 509-10, paras 40-42)

40. Thus, on a harmonious reading of Section 5(2) of the PC Act with the provisions of Section 306, specially Section 306(2)(a) of the Code and Section 26 of the PC Act, this Court is of the opinion that the Special Judge under the PC Act, while trying offences, has the dual power of the Sessions Judge as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the court both prior to the filing of charge-sheet as well as after the filing of charge-sheet, for holding the trial.

41....Since this Court has already held that the Special Court is clothed with the magisterial power of remand, thus in the absence of a contrary provision, this Court cannot hold that power to grant pardon at the stage of investigation can be denied to the Special Court.

42. In view of the discussion made above, this Court is of the opinion that the power of granting pardon, prior to the filing of the charge-sheet, is within the domain of judicial discretion of the Special Judge before whom such a prayer is made, as in the instant case by the prosecution.

14. Bangaru Laxman (supra), therefore, emphasizes the concurrent jurisdiction of the Special Judge as well as the Chief Judicial Magistrate or Metropolitan Magistrate to grant pardon during investigation, but does not say that the Metropolitan Magistrate has no power Under Section 306 Code of Criminal Procedure. to grant pardon during the investigation i.e. before filing of charge-sheet before the Special Judge. During investigation, in our view, both the Special Judge as well as the Magistrate acting Under Section 306 Code of Criminal Procedure. have concurrent jurisdiction to entertain application of pardon which facilitates proper investigation of the crime. But, as already indicated, after the committal of the case, the pardon granted by the Magistrate is not a curable irregularity."

9. From the above interpretation, it is absolutely clear that in the case at hand since the proceedings appeared to have been initiated in the court of Special Judge, Anti-corruption, Ghaziabad, the said court has full jurisdiction to tender pardon to the applicant subject to the fulfilment of the necessary conditions which have been mentioned above that the accused makes a full and truthful disclosure of the whole of circumstances within his knowledge concerning the offence and also concerning every other person involved in the commission of the offence whether he is a principal or an abettor.

10. In the case at hand, the impugned order discloses that though the court below had found that the applicant accused was a Charted Accountant of the main accused Yadav Singh and his family members who have amassed a huge moveable and immoveable property out of the income which was unaccounted and accordingly in the prosecution version, the role of the present accused was found to be assisting the main accused along with co-accused in converting their unaccounted money into accounted one, therefore statement of this accused could be of enormous help in ensuring that the main accused and his companion accused could easily be got convicted by means of using the evidence of the accused applicant in case he was tendered pardon and made an approver. In the application submitted by him, he has made it clear that he was Charted Accountant of the Yadav Singh and his family members and knew about various entries made in the documents which were involved in converting unaccounted money into accounted money which was used by Yadav Singh and his family members in acquiring various other moveable and immoveable properties although he has denied to be involved in the commission of present offence in question. He has also stated that the C.B.I had indicated its no objection to his turning into an approver and at the initial stage of investigation, had assured him that they wanted to make him approver but later on did not do so. The statement of the applicant has been recorded before the Court of Metropolitan Magistrate in Delhi under section 164 Cr.P.C. in which he has given detailed description of how the money was invested by the main accused Yadav Singh and his family members.

11. The learned lower court has mainly rejected the said application of the accused on the ground that there were as many as 488 witnesses recorded by the prosecution whose evidence was sufficient to ensure conviction of the main accused and his family members who are co-accused in the present case and that there was no need for the accused applicant to be made an approver for that purpose. It was also expressed that the accused applicant had remained involved with Yadav Singh in criminal conspiracy in helping him acquire huge property disproportionate to his known sources of income and that if he was ready to turn an approver on the ground of being tendered pardon and go against the interest of main accused, he could also dupe court and could throw the charges which were made against him upon others. To counter such an opinion, the learned counsel for the applicant has relied upon a judgement dated 24.05.2011 delivered by Delhi High Court in criminal revision P. No-443/2010, Arvind Khanna Vs. C.B.I. In this case, the grant of pardon was rejected by the learned special judge although, the C.B.I had stated that it had no objection to the grant of pardon to enable the said accused to turn as an approver and testify against the remaining accused persons . Further it was held by the lower court that there was sufficient evidence in possession of the prosecution to procure the conviction of the other co-accused persons. The Delhi High Court held that the trial court judge had fallen into error by rejecting an application of the petitioner for being tendered pardon and to turn an approver and held that it was not an appropriate ground to reject the said application for seeking pardon under section 307 Cr.P.C. that there was sufficient evidence on record and that it was immaterial that C.B.I had no objection to the petitioner turning an approver. We are in agreement with this view of Delhi High Court.

12. Therefore it is apparent from the above position of law what was required by the trial court was to be satisfied as to whether in case the applicant was tendered pardon subject to his making full and true disclosure of the whole of the circumstances within his knowledge, his evidence could be useful in getting the co-accused convicted. The fact that, it had also discarded the no objection of the C.B.I to the application of the accused applicant to turn approver, only because the trial court was of the view that there was enough material/evidence on record to secure the conviction of the other co-accused, was not a justified approach in rejecting the said application. It may also be mentioned that the learned trial court seems to have a wrong notion that if the applicant is made approver after being tendered pardon, he could dupe the court by resiling from the commitment of revealing true facts, but that fear seems to be unfolded as there is adequate provision under Section 308 Cr.P.C. to meet such a contingency & the pardon could be recalled and he could be tried as an accused separately not only for the offence for which he is tendered pardon but also for giving false evidence. Therefore, we find that impugned order deserves to be set aside and is, accordingly, set aside with a direction that a fresh consideration shall be made by the trial court of the application of the accused applicant seeking tender of pardon to be allowed and for being made an approver in the present case within one month positively from the date of production of certified copy of this order before it after giving an opportunity to the prosecution as well as the accused. We direct, accordingly.

13. Let the photo-copies of the statements of the accused, Mohan Lal Rathi recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. which were earlier submitted by the learned counsel for the C.B.I., Sri Gyan Prakash in Court during proceedings be returned to him.

14. This application under section 482 Cr.P.C. is accordingly allowed.

(Dinesh Kumar Singh-I.J.) (Ramesh Sinha,J.)

Order Date:- 14.05.2018

A. Mandhani